Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 236th District Court Tarrant County, Texas
Trial Court No. 236-292659-17.
Kerr, Birdwell, and Bassel, JJ.
Elizabeth Kerr Justice.
interlocutory appeal, the City of Arlington appeals from the
trial court's order denying its no-evidence
summary-judgment motion challenging the trial court's
subject-matter jurisdiction over Betty Warner's
inverse-condemnation suit. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(8). We will affirm.
2005, Warner purchased a three-acre residential property in
Arlington. There is a private pond on the property, and the
City owns a drainage easement across the property. Warner
alleges that when it rains, excessive amounts of water from
the surrounding streets (along with large amounts of garbage,
waste, and contaminants allegedly diverted by the City) flow
through the City's storm sewers and flood her property
and pond with water and debris. She also claims that the
water and debris exceed the drainage easement's
boundaries and its permissible usage and scope. She further
complains that the City required her to install an x-inlet
box on her property that "creates a damning [sic]
effect" that prevents water from draining off her
property. According to Warner, the City's actions have
deprived her of the enjoyment of her property and pond.
2017, Warner sued the City for inverse condemnation under
article 1, section 17, of the Texas constitution, claiming
that the City's intentional acts resulted in the taking,
damaging, and destruction of her property for public use.
See Tex. Const. art I, § 17. Warner sought
injunctive relief and monetary damages.
September 2018, the City filed a no-evidence summary-judgment
motion asserting that its governmental immunity was not
waived because (1) Warner failed to adquately plead an
inverse-condemnation claim, and (2) she had presented no
evidence on the elements of that claim. The City attached no
evidence to its motion. Warner responded, and the City
objected to some of Warner's summary-judgment evidence.
The trial court sustained the objections but denied the
City has filed an interlocutory appeal raising two issues:
(1) whether a governmental entity may use a no-evidence
summary-judgment motion as a vehicle to challenge
subject-matter jurisdiction after the opposing party has had
adequate time for discovery and (2) if such a motion is a
permissible means to challenge subject-matter jurisdiction,
whether Warner's response to the City's no-evidence
summary-judgment motion raised a fact issue on the
jurisdictionally required intent element of her
I, section 17, of the Texas constitution-the "takings
clause"-waives governmental immunity for the taking,
damaging, or destruction of property for public use without
adequate compensation. See id.; Steele v. City
of Houston, 603 S.W.2d 786, 791 (Tex. 1980). When a
governmental entity intentionally takes private property for
public use without adequately compensating the landowner,
"the owner may recover damages for inverse
condemnation." Tarrant Reg'l Water Dist. v.
Gragg, 151 S.W.3d 546, 554 (Tex. 2004). To establish an
inverse-condemnation claim under the Texas constitution, a
plaintiff must plead and prove (1) an intentional
governmental act (2) that resulted in the taking, damaging,
or destruction of her property (3) for public use. See
Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39
S.W.3d 591, 598 (Tex. 2001).
it challenged the trial court's subject-matter
jurisdiction over Warner's inverse-condemnation suit, we
review the City's no-evidence summary-judgment motion as
a plea to the jurisdiction. See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(8) (providing for an
appeal from an interlocutory order granting or denying a
governmental unit's plea to the jurisdiction), §
101.001(3)(B) (defining "governmental unit" to
include a city as a political subdivision of the state);
Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006)
("The Legislature provided for an interlocutory appeal
when a trial court denies a governmental unit's challenge
to subject matter jurisdiction, irrespective of the
procedural vehicle used."); Tex. Dep't of
Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.
2004) (observing that an interlocutory appeal may be taken
under section 51.014(a)(8) whether a jurisdictional argument
is presented in a plea to the jurisdiction or a
summary-judgment motion because the right of appeal is tied
to the substance of the issue raised and not to any
particular procedural vehicle). A plea to the jurisdiction is
a dilatory plea that seeks dismissal of a case for lack of
subject-matter jurisdiction. Harris Cty. v. Sykes,
136 S.W.3d 635, 638 (Tex. 2004). Whether a court has
subject-matter jurisdiction is a legal question, and we
review de novo a trial court's ruling on a plea to the
jurisdiction. Tex. Dept of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004).
jurisdictional plea may challenge the pleadings, the
existence of jurisdictional facts, or both. Alamo Heights
I.S.D. v. Clark,544 S.W.3d 755, 770 (Tex. 2018).
Although the City challenged Warner's pleadings in the
trial court, it has expressly waived that challenge on appeal
(along with most of its challenges to the jurisdictional
facts) and focuses solely on whether Warner established the
"jurisdictionally required element of intent." The
standard of review for a jurisdictional plea challenging
jurisdictional facts "mirrors that of a [traditional]
summary judgment under Texas Rule of Civil Procedure
166a(c)." Miranda, 133 S.W.3d at 228. Under
this standard, as the movant, the governmental entity has the
burden to assert and prove with evidence that the trial court
lacks subject-matter jurisdiction. See Mission Consol
I.S.D. v. Garcia,372 S.W.3d 629, 635 (Tex. 2012)
("Initially, the defendant carries the burden to meet
the summary judgment proof standard for its assertion that
the trial court lacks jurisdiction."); see also
Miranda, 133 S.W.3d ...